Delhi High Court

Pumpkin Studio Pvt. Ltd. vs S.Harjinder Singh Chadha on 1 September, 2010

Author: V.B.Gupta

*            HIGH COURT OF DELHI : NEW DELHI

      CM (M) No.1104/2010 & CM No.15547/2010

%            Judgment reserved on: 30th August, 2010

             Judgment delivered on: 1st September, 2010

      Pumpkin Studio Pvt. Ltd.
      Through its Director Sh. Hardeep Gill
      Having its office at C-8, IIIrd Floor, Vishal Enclave,
      Rajouri Garden, New Delhi               ....Petitioner/Defendant

                      Through:   Mr. Sujeet Kumar Mishra, Advocate

                      Versus

      S.Harjnder Singh Chadha (H.U.F.)
      Through its Karta, S.Harjinder Singh Chaddha,
      R/o D-1/5, Rajouri Garden,
      New Delhi-110027                      ....Respondent/Plaintiff.

                      Through:   Mr. Shahid Ali, Advocate

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                Yes

2. To be referred to Reporter or not?             Yes

3. Whether the judgment should be reported
   in the Digest?                                 Yes

V.B.Gupta, J.

Present petition under Article 227 of the Constitution of India

has been filed against order dated 8.7.2010 passed by Additional

District Judge, Delhi, vide which application of petitioner under Order

14 Rule 1 (5) of Code of Civil Procedure (for short as „Code‟) for

framing of issues, was dismissed with costs of Rs.1,000/-.

2. Brief facts of this case are that, on 10.8.2009 respondent

(plaintiff in the trial court) filed a suit for possession, recovery of

Rs.4,00,000/- towards arrears of rent and Rs.1.5 lacs towards damages

against present petitioner (defendant in the trial court).

3. On 5.11.2009, petitioner filed an application under Order 7 Rule

11 of the Code, which was dismissed by the trial court.

4. Later on, petitioner filed his written statement along with

counter claim, notice of which was issued to the respondent.

5. On 2.3.2010, trial court dismissed the application of petitioner

under Order 8 Rule 6A of the Code, waiver of cost and did not allow

the written statement of petitioner to be taken on record.

6. Thereafter, on 22.3.2010 petitioner filed revision petition before

this Court for setting aside order dated 2.3.2010 which was also

dismissed by this Court on 19.4.2010.

7. It is contended by learned counsel for petitioner that, even if no

written statement was filed by the petitioner, the Court ought to have

framed the issues. In support learned counsel cited Makhan Lal

Bangal vs. Manas Bhunia & Others AIR 2001 SC 490 in which it

was observed:-

"An obligation is cast on the Court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend."

8. Thus, it is contended by learned counsel that absence of written

statement does not mandate the trial court, not to frame the issues.

Trial court has to frame the issues which is mandatory as per

provisions of Order 14 Rule 1 (5) of the Code.

9. On the other hand, it is contended by learned counsel for

respondent that, present application is nothing but gross abuse of the

process of law. Since, there is no written statement on record, in the

absence of written statement, question of framing of any issue does

not arise. Petitioner had been filing frivolous applications, one after

the other. His only intention is just to delay the case. Some of the

applications filed by petitioner have already been dismissed with costs

and even costs have not been paid by the petitioner.

10. Present petition has been filed under Article 227 of the

Constitution of India. It is well settled that jurisdiction of this Court

under this Article is limited.

11. Article 227 of The Constitution of India reads as under;

"227. Power of superintendence over all courts by the High Court- (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provisions, the High Court may-

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein;

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law

for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed forces."

12. In Waryam Singh and another Vs. Amarnath and another,

AIR 1954, SC 215, the court observed;

"This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in - „Dalmia Jain Airways Ltd. V. Sukumar Mukherjee‟, AIR 1951 Cal 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."

13. In Mohammed Yusuf Vs. Faij Mohammad and Ors., 2009 (1)

SCALE 71, Supreme Court held;

"The jurisdiction of the High Court under Article 226 & 227 of the Constitution is limited. It could have set aside the orders passed by the Learned trial court and Revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety".

14. In State of West Bengal and Ors. Vs. Samar Kumar Sarkar,

JT 2009 (11) SC 258, Supreme Court held;

‟10.Under Article 227, the High Court has been given power of superintendence both in judicial as well as administrative matters over all Courts and

Tribunals throughout the territories in relation to which it exercises jurisdiction. It is in order to indicate the plentitude of the power conferred upon the High Court with respect to Courts and the Tribunals of every kind that the Constitution conferred the power of superintendence on the High Court. The power of superintendence conferred upon the High Court is not as extensive as the power conferred upon it by Article 226 of the Constitution. Thus, ordinarily it will be open to the High Court, in exercise of the power of superintendence only to consider whether there is an error of jurisdiction in the decision of the Court or the Tribunal subject to its superintendence.

12. In Bathutmal Raichand Oswal Vs. Laxmibai R. Tarta (AIR1975SC1297) this Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. High Court‟s function is limited to see that the subordinate court or Tribunal functioned within the limits of its authority. The Court further said that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise.‟

15. In Laxmikant Revchand Bhojwani and Anr. Vs. Pratapsing

Mohansing Pardeshi Deceased through his Heirs and Legal

representatives, JT 1995(7) SC 400, Apex Court observed;

"The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where

grave injustice would be done unless the High Court interferes."

16. In light of principles laid down in the above decisions, it is to be

seen as to whether present petition under Article 227 of the

Constitution of India against impugned order is maintainable or not.

17. Order 14 of the Code read as under:-

"1. Framing of issues.- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

(4) Issues are of two kinds:

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [after examination under rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence."

18. Application in question has been filed under Order 14 Rule 1

(5) of the Code. Provisions of Rule 1 (6) of Order 14 of the code

states that "Nothing in this rule requires the court to frame and record

issues where the defendant at the first hearing of the suit makes no

defence."

19. Admittedly, in the present case petitioner at the first hearing of

the suit has not made any defence. Thus, provisions of Order 14 Rule

1 (5) are not applicable at all to the facts of the present case.

20. Trial court rightly, dismissed the application under Order 14

Rule 1(5) of the Code and observed;

"There is an application under order 14 rule 1 (5) CPC moved by defendant on 26.05.2010 for framing of issues. Notice of this application has not been issued to the plaintiff. Heard on this application. Issues are framed in a case on the basis of plaint and written statement. Written statement of the defendant was not allowed to be taken on record and that order was upheld by the High Court. In absence of any written statement on record filed on behalf of the defendant no question arises for framing of issues. The request of counsel for defendant to record the statement of the parties under order 10 CPC and then to frame the issues is rejected because it is not compulsory for the court to record the

statement under order 10 CPC of the parties in each and every case before framing of issues. The second request to frame the issue on the basis of the objections taken on the application under order 7 rule 11 CPC is also rejected as issues are framed on the basis of the pleadings and not on the basis of misc. applications. There is no merit in this application so the same is dismissed with cost of Rs.1,000/-."

21. Thus, there is no ambiguity, illegality or irrationality in the

impugned order and present petition is not maintainable under Article

227 of the Constitution of India.

22. Present petition is most bogus and frivolous one, as apparent

from the record. Petitioner has been filing one application or the

other, just to delay the trial, when it had no defence. Those litigants

who are in the habit of filing frivolous and meritless applications one

after the other, when they have no legal defence to contest the case

should not be spared and be dealt with heavy hands. Similarly, those

litigants who are in the habit of challenging each and every order of

the trial court, though the same are based on sound reasoning and try

to create hurdle in the smooth functioning of the judicial system, at